Category Archives: Human Rights

Putting aside the usual “they had it coming” comments that have flourished on twitter and facebook, since Tuesday, I am reading reports that a number of media outlets are deciding not to show Charlie Hebdo cartoons. This seems to be the case for CNN for example, which circulated an internal memo to that effect, and Associated Press which apparently removed Charlie Hebdo cartoons from its database.

I called this reaction “sad and cowardly” on twitter yesterday, but I suppose that faced with such barbaric act of violence, I should show some understanding for the decision of these journalists who might fear for their lives. Not everybody has the courage of Charb, the editor in chief of Charlie Hebdo, who claimed to prefer to die standing than on his knees.

The problem is that fear, which is at the end of the day a natural human reaction, is not the the justification that is always put forward. This is from the CNN memo:

Although we are not at this time showing the Charlie Hebdo cartoons of the Prophet considered offensive by many Muslims, platforms are encouraged to verbally describe the cartoons in detail. This is key to understanding the nature of the attack on the magazine and the tension between free expression and respect for religion.

In my initial reaction to the attack in Paris against Charlie Hebdo cartoonists, I claimed rather harshly that the idea one finds in human rights discourse that offense or disrespect of religion are legitimate limitations of free speech was conceptually also responsible for what happened in Paris. The CNN memo illustrates this point by putting in the same balance free speech and respect for religion.

However, there is no right to be respected in my view, either for individuals, and even less for religions. As noted by Salman Rushdie in his message of support to Charlie Hebdo, “‘Respect for religion’ has become a code phrase meaning ‘fear of religion.’ Religions, like all other ideas, deserve criticism, satire, and, yes, our fearless disrespect.” Freedom of expression and respect for religion, or any idea, should not therefore never be put on the same level.

Of course, some people have told me that my focus on freedom of expression is too intellectual and beside the point in response the the senseless violence that the murderers used. It is a language that they cannot start to understand.

I agree. There are some people with whom dialogue is impossible and there is no sense in invoking against them certain values, because values, contrary to the universalist ideology, imply a shared social contract, a sense of wanting to live together within the same community (vivre ensemble, in French).

This was brilliantly captured by Charb in a 2012 editorial in Charlie Hebdo:

[translation: Paint a glorious Muhammad , you die. Draw a funny Muhammad, you die. Scribble an ignoble Muhammad , you die. Make a crappy movie about Muhammad , you die. Resist religious zealots , you die. Lick the ass the fundamentalists , you die. Take an obscurantist for a fool , you die. Try to debate with an obscurantist , you die. There is nothing to negotiate with fascists.]

My point is very different. I am not trying to convince extremists to agree with me. They probably never will, as our views of the world and of a shared community are radically opposed.

My point is addressed at those within our democracies who try to limit free expression every day under the guise of human rights, respect or human dignity. I believe that freedom of expression is non negotiable full stop, whether with fascists or anyone else. Yet, I wonder how many of the people who are supporting Charlie Hebdo today are truly supporting freedom of expression.

Indeed, the same people who are marching in the street today, often also think that voices should be silenced through laws which vaguely define “incitement to racial hatred” or want Parliaments to legislate on history through laws prohibiting denial of certain events or crimes. Of course, they would claim that these examples are very different. What transpires from interviews done with people attending the marches in Paris is that, Charlie Hebdo cartoonists are defended because they are perceived as progressive left-wingers. Whereas the likes of Dieudonné, a controversial French humorist, perceived as an antisemite, should not be allowed to do his shows. It is also the same people who would refuse that the Front National, a legally recognized French party, not participate in the general march in support of Charlie Hebdo because it is not ‘republican’ enough. It is the same people who denounce the racist caricatures of far-right newspaper Minute.

Do they not see the paradox there? Marching in the street seemingly denouncing any attack on freedom of expression while at the same time denying that the others should be allowed to express themselves… Freedom of expression is a question of principle which should not depend on the content of the expression, in the same way that the protection of the rights of the accused in international tribunals should not depend on the perception of guilt, or the our moral reaction to the horrendous nature of the crimes. I defend Charlie Hebdo cartoonists in the same way I would defend Dieudonné or Garaudy, a French holocaust denier (or his English equivalent, David Irving): because whatever they say, they should have a right to say it in a democratic society. I wonder how many people, if these shootings had taken place at Minute, would now be wearing a T-shirt with “I am Minute” on it.

In that respect I am profoundly intellectually opposed to the phrasing of of Article 10(2) of the ECHR which provides that:

The exercise of [freedom of expression], since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society

For me, a truly democratic society should not need to limit freedom of expression. It should be solid enough in its foundations to accept even the most radical opinions, however outrageous or disrespectful they are.

The problem is that too many people have accepted this intellectual dictatorship that seeks to impose what we should think about everything and the ensuing limitations to our freedom of expression.

I see this every year in my human rights classes, where I always take freedom of expression as a case study. I do this because I realized that this seems to be the fundamental freedom, in appearance applauded throughout the world as shown by the overwhelming support for Charlie Hebdo, where students are willing to accept limitations on the basis of various moral, religious or other grounds without any further reflection. This is not the case for other freedoms, such as the prohibition of torture for example, because they create easily digestible dichotomies between perpetrator and victim, where there is no real debate whose side to be on. You are on the side of the victim, therefore you agree with the prohibition of torture. Easy. Freedom of expression is something else, because the victims are seen not as those protected by the right, but those affected by the exercise of the right by someone else. So by naturally siding with the victim, we have to disagree with the exercise of the right to freedom of expression. And it is all downhill from there.

Some would claim that the conduct of the media outlets mentioned previously shows, as the phrase goes, that “the terrorists win”. Sadly, I think the situation is far worse than that. Because of our easy acceptance of limitations to freedom of expression in our societies, we have already, despite our most sincere claims to the contrary, started to erode, slowly but surely, this most fundamental freedom that is free speech. What’s worse therefore than the terrorists winning? The fact that we don’t seem to have needed the terrorists in the first place…

I conclude with this beautiful quote from French humorist Pierre Desproges, who practiced his art at a time when you could be caustic without being sued and who would cry if he woke up in France today:

[translation (francophone readers will have to forgive me for this crude translation of Desproges. His mastery of the French language make it quite hard to translate): If it is true that humour is the politeness of despair, if it is true that laughter, blasphemous sacrilege that bigots of all the creeds denounce as vulgarity and bad taste, if it is true that that laughter can sometimes desacralize stupidity, exorcise the real sorrows and castigate mortal anguishes, then yes, one can laugh about everything, one must laugh about everything.]

I resisted until now entering the fray of the discussion, because it seemed to me that, albeit very brilliantly, these authors were basically covering familiar ground and points of contention in the ongoing discussion on this issue. I tend to agree that one should be clear on the distinction between law and policy, and be clear on the fact that the latter having absolutely no obligation to abide by the current state of the former. In relation to policy, I personally have no opinion on what is preferable and will leave this to my colleagues, who actually have an influence in policy discussions…

What triggers this post is a small methodological point on the framing of the argumentation and possible confusion between the UN Charter and general international law. Indeed, the heart of the legal discussion seems to be how to interpret Article 2(4) of the UN Charter which relates to the prohibition of the threat or use or force, and whether this might be read to allow some limited forms of humanitarian intervention outside a UNSC Chapter VII authorization. The “textualists” (Heller, Kay, Stahn) say that cannot, while the “progressist” (Koh) thinks that it is, based both on a reading of the UN Charter and its objectives and examples of developing practice in that direction.

On monday, the Supreme Court of Uruguay issued a decision condemning the 1986 amnesty law for crimes commited under the military regime that was in power until 1985. I’m not familiar with the constitutional framework in Uruguay and the legal consequences of the decisions. Some report that the law was declared “unconstitutional” (see here): does it mean that the law is immediately inapplicable? Others report that the law was “annuled” (see here). I haven’t read the decision (if someone has it in English, i’d appreciate receiving it!) but apparently, the Court invoked Uruguay’s human rights obligations to respect victim’s right to reparations and to know the truth.

This is a new decision in the trend against amnisties in international law, and is, in this sense not particularly groudbreaking. I won’t go into a debate here on the general question of Amnisties (I invite you to read my forthcoming paper on this). What strikes me more particularly in this case, beyond the legal technicalities, is that the law was upheld by referendum, not once, but twice, the last time as recently as 2009, despite strong opposition from rights groups. I find it a little disturbing, in the broader political scheme of things, that the democratic popular expression of opinion be given so little consideration. In 2009, after the referendum, the regional director of HRW said that: “let’s not forget that accountability is not a popular contest that should be decided by majorities”. Actually, it kind of is. Society makes a choice to criminalize some conducts and not others. And the least worst way we have come up to evaluate support for such choices is requiring a majority. In other words democracy. What kind of arbitrary criteria allows HRW to decree that democracy is a good thing, except when people don’t vote “right”? If the referendum had gone the other way, I’m sure that same person would have applauded the popular support against amnisties.

It is a difficult balance to be struck between majority decisions and minority opinions in any democracy, and a harder balance even between human rights and political compromise in situations of transitions, and I certainly do not claim to have the answer. But as a rule, I would tend to give quite some credit to the free expression of public opinion as a starting point. The majority principle (with qualifiers or not), is effective in that it allows institutions to move forward. Whereas, minority power can only lead to political stalemate. This is of course schematic, and doesn’t mean that there shouldn’t be any normative framework (both procedural and substantial) surrounding the exercice of democratic expression. But as a rule of thumb, I have difficulty seeing how a law disapproved by a majority can be politically legitimate.

This reasoning of course implies adopting a collective/social contract approach to political analysis, which is a little removed from the individual approach, where rights emerge from above and social relationships are totally depoliticised. Indeed, how could they not be where the origin of rights is transcendental, rather than emerging from some form of popular consensus? you cannot argue with a priori morality. I find it ironic that such effort was put by intellectual and political leaders over the centuries to free themselves from the Church by breaking down the conflation between the temporal power and the spiritual power, only to see the latter re-enter through the prism of Universal Human Rights in recent years. Apparently, nothing much has changed since the Middle Ages…

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I just got back from the ISA annual conference in New Orleans, this behemoth of a conference with 4000 participants and nearly 1000 panels in 4 days. It was interesting enough, even if i’m a a little skeptical on the usefulness of such a huge conference.I’ve also been confirmed in some doubts I’ve been having recently in my work on transitional justice on the benefits of pluridisciplinarity. Of course, we have to recognise that there are multiple facets to any given issue. You can’t just look at law, or sociology or anthropology. But there seems to be this search for a meta-science that tries to combine all academic approaches of a given question, just like scientists are looking for a unified theory of forces. I think this just leads to confusion, where lawyers are doing bad sociology, sociologists are trying to act as legislators, etc. and the result is just more confusion.Transitional Justice is a perfect example. It is one thing to adhere to a paradigm that says that you have to look at local conditions and frameworks to deal with post-conflict situations, and that justice is a multi-faceted concept that needs the input of several social sciences, not just lawyers, who had dominated the international justice approach up until recently. But as a discipline, Transitional Justice is still looking for its soul. Political scientists sometimes forget the normative dimensions. I heard one speaker defend amnesties on flimsy facts and adopting a utilitarian approach. Following his logic, that completely ignores the moral choice a society makes in controlling certain conducts, you could argue that killing one person in a national context could be useful and therefore make exceptions to the “thou shall not kill” rule…). Activists expect criminal courts to deal with issues with are fundamentally at odds with criminal trials (reconciliation for example). Universalist human rights people struggle with the adaptation to local settings and the difficulties of upholding strict human rights standards in transitional societies. What was initially a useful dialogue often seems to me to be counter-productive cacophony.Another example is genocide, where activists are locked into a semantic/legal prison where they lose sight of the overarching goal of raising awareness for mass atrocities in general and where other social sciences can’t seem to escape the legal definition of genocide (which is criminal and focuses on individual criminal responsibility) to elaborate their own definition that would better take into account the collective and socio-political aspects of the crime.Any thoughts on that?

PS: I’m going to try and follow Michelle’s advice and keep my posts somewhat shorter for a while. Let’s see how that goes…